In Re: Jimenez ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 22, 2006
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 05-11421
______________________
In Re: JOSE ANTONIO JIMENEZ
Movant
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Appeal from the United States District Court for the
Northern District of Texas, Dallas
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Jimenez, Texas prison # 1028536, pleaded guilty on
February 8, 2001, to aggravated assault and injury to a child,
and was sentenced to 15 years and 20 years, respectively.
Jimenez’s conviction and sentence were affirmed on appeal and the
Court of Criminal Appeals refused his petition for discretionary
review. Jimenez subsequently filed state applications for habeas
relief, which were denied.
On September 21, 2002, while his petition for discretionary
review was still pending, Jimenez filed his first federal habeas
petition, which challenged a disciplinary action. Jimenez had
been found with three pills and assessed a punishment of 30 days
commissary restriction and a change in line classification, which
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
he complained violated his due process right by “affecting [his]
mandatory release date.” This petition was ultimately dismissed.
On June 8, 2004, Jimenez filed his second § 2254
application, at issue here, which challenged his conviction on
several grounds. The magistrate judge determined that the
petition was successive, and the district court adopted the
magistrate judge’s findings and conclusions, ordering transfer of
the matter to this court.
We are faced here with two questions: (1) whether
Jimenez’s current petition is successive because it follows an
earlier habeas petition challenging a disciplinary action,** and
if so, (2) whether the court should grant his request to file a
successive petition.
With regard to the first issue, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) does not define what
constitutes a second or successive habeas petition, but “a
prisoner’s application is not second or successive simply because
it follows an earlier federal petition.” In re Cain, 137 F.3d
234, 235 (5th Cir. 1998). Rather, this circuit finds that “a
later petition is successive when it: 1) raises a claim
challenging the petitioner’s conviction or sentence that was or
could have been raised in an earlier petition; or 2) otherwise
constitutes an abuse of the writ.” Id. And “‘the sole fact that
**
This court addresses sua sponte whether a § 2254
petition is sucessive. See Crone v. Cockrell, 324 F.3d 833, 836
(5th Cir. 2003).
the new claims were unexhausted when the earlier federal writ was
prosecuted will not excuse their omission.’” Crone v. Cockrell,
324 F.3d 833, 837 (5th Cir. 2003) (quoting McGary v. Scott, 27
F.3d 181, 184 (5th Cir. 1994)).
Under these standards, Jimenez’s current habeas petition is
successive. The facts necessary to raise Jimenez’s current
challenges to his conviction occurred before his initial habeas
petition, and Crone establishes that the failure to raise those
challenges is not excused merely because they were unexhausted at
that time. Id. This case presents no reason why the result
should be different merely because Jimenez challenged the
administration of his sentence before his conviction rather than
the other way around, as neither courts nor the AEDPA distinguish
between the two types of challenges. See Benchoff v. Colleran,
404 F.3d 812, 818 (3rd Cir. 2005). Our circuit has a “strong
policy against piecemealing claims,” Jones v. Estelle, 722 F.2d
159, 168 (5th Cir. 1983), overruled on other grounds as
recognized by Saahir v. Collins, 956 F.2d 115, 119 (5th Cir.
1992), and has held under comparable circumstances that a habeas
petition challenging a petitioner’s conviction for the first time
was rendered successive by an earlier habeas challenge seeking to
file an out-of-time direct appeal. See United States v. Orozco-
Ramirez, 211 F.3d 862, 869 (5th Cir. 2000).
For this court to authorize the filing of a successive
§ 2254 application, the petitioner must show that he:
(A) . . . relies on a new rule of
constitutional law, made retroactive to cases
on collateral review by the Supreme Court,
that was previously unavailable; or
(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if
proven and viewed in light of the evidence as
a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. §2244(b)(2).
Jimenez’s petition fails to satisfy this provision.
Although he contends that his application relies on newly
discovered evidence, the factual predicate for the claims was
known to him or could have been discovered through due diligence
before filing his first federal petition. And although he claims
that he is actually innocent of the crimes for which he was
convicted, allegedly supported by the complainant recanting his
accusations, he has at a minimum failed to show by clear and
convincing evidence that, but for constitutional error, no
reasonable jury would have found him guilty. The record shows
that Jimenez testified under oath that he used a gun to shoot a
child and affirmed that he was guilty during his sentencing
hearing, never testifying that he did not wield a gun or that
someone else fired the shot that injured the child.
Accordingly, IT IS ORDERED that Movant’s motion for
authorization to file a successive habeas corpus petition is
DENIED.